Leadman v. Fidelity & Casualty Co. of New York

Decision Date19 August 1950
Docket NumberCiv. A. No. 1088.
Citation92 F. Supp. 782
CourtU.S. District Court — Southern District of West Virginia
PartiesLEADMAN v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

Daniel & Daniel, John W. Daniel, and Will H. Daniel, Huntington, W. Va., for plaintiff.

Jackson, Kelly, Morrison & Moxley, W. T. O'Farrell and W. J. Carter, Charleston, W. Va., for Fidelity & Casualty Co. of New York.

MOORE, District Judge.

This action was originally instituted in the Circuit Court of Putnam County, West Virginia, from which it was removed to this court by defendant The Fidelity and Casualty Company of New York, a corporation. Plaintiff has moved to remand.

Plaintiff is a resident of West Virginia. Defendants Gammon and Peyton, hereinafter referred to as the principals, are police officers of the town of Hurricane, West Virginia, and are residents of West Virginia. The Fidelity and Casualty Company of New York, hereinafter referred to as the bonding company, is surety on the separate bonds of the principals, and is a resident of New York. Each bond is in the sum of $3,500, each is conditioned upon the faithful discharge of the duties of the principal therein named, and each recites that the principal and surety are jointly and severally bound.

Prior to bringing this suit, plaintiff instituted an action in the state court against the principals for false arrest and malicious prosecution. A jury returned a verdict in favor of plaintiff for $5,000, and final judgment was entered thereon. Execution on the judgment was returned "no property found." Plaintiff then instituted this action in the state court against the bonding company to subject the bonds to payment of the amount of the judgment, interest and costs, joining the principals as defendants. She prays for no relief against either of the principals. The bonding company sought removal on the ground that the principals are mere formal or nominal parties, and on the further ground that if any cause of action is stated against the principals, the cause of action against the bonding company is a separate and independent claim which would be removable if sued upon alone. Plaintiff's motion to remand is grounded on the contention that the principals are necessary parties to the action because they are vitally interested in the subject matter of the litigation; that, inasmuch as each of the bonds sought to be subjected to her judgment recites that the principal and surety are jointly and severally bound, she cannot be deprived of her option to enforce joint liability; and that there is no separable controversy as to the bonding company, since it is liable jointly with the principals on the same cause of action.

I am of opinion that plaintiff's motion to remand should be overruled, and an order will be entered accordingly.

In determining questions of removability, only indispensable and necessary parties are considered. Nominal or formal parties are disregarded. As plaintiff contends, the courts have uniformly defined indispensable parties as those who have such an interest in the subject matter that a final decree cannot be made without either affecting their interests or leaving the controversy in such condition that a final determination may be wholly inconsistent with equity and good conscience. Barron and Holtzoff on Federal Practice and Procedure, (Rules Edition) Secs. 103, 512; 35 C.J.S., Federal Courts, § 60, pages 885-888; 30 C.J.S., Equity, § 142, pages 573-575. But that principle is inapplicable to the facts of the instant case, since it is clear that the Court can proceed to final judgment without affecting any interest of the principals, and without reaching a result that would be inequitable as to any of the parties; for not only has final judgment been rendered already against the principals the amount whereof could in no event be exceeded here, but as to them no relief is sought.

I have been able to find but one case, St. Louis County ex rel. Ketts v. Heman et al., D.C.Mo., 31 F.Supp. 744, whose facts are similar to those in the case now before me. There the plaintiff sued his employer, a resident of the same state, in a state court to recover a judgment confirming a Workmen's Compensation Commission's award of compensation for injuries sustained by him in the course of his employment. He was awarded a final judgment, which was not paid. He then...

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13 cases
  • Glenmede Trust Company v. Dow Chemical Company, Civ. A. No. 74-2345.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 Octubre 1974
    ...Assoc., Inc. v. Alpert et al., 194 F.Supp. 552 (D. Conn.1961); Helms v. Ehe, 279 F.Supp. 132 (S.D.Tex.1968); Leadman v. Fidelity & Casualty Company, 92 F.Supp. 782 (S.D.W.Va. 1950). Because the determination of whether a party is necessary or indispensable to a proceeding is dispositive of ......
  • Colman v. Shimer, Civ. A. No. 3227.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 23 Junio 1958
    ...v. Smith & Oby Company, D.C., 148 F.Supp. 126; Kopitko v. J. T. Flagg Knitting Co., D.C., 111 F. Supp. 549; Leadman v. Fidelity & Casualty Co. of New York, D.C., 92 F.Supp. 782. Under the Federal law a party whose role in a law suit is that of a depositary or stakeholder is a formal or nomi......
  • Kearney v. Dollar, Civ. A. No. 1503.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 16 Enero 1953
    ...of Clinton, 10 Cir., 131 F.2d 978, 981; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Leadman v. Fidelity & Casualty Co. of N. Y., D.C., 92 F.Supp. 782; Higgins v. Baltimore & Ohio R. Co., C.C., 99 F. 640; Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390; Lucas ......
  • Stonybrook Tenants Association, Inc. v. Alpert
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 31 Mayo 1961
    ...to the question of diversity in determining whether a case has been properly removed, the court in Leadman v. Fidelity & Casualty Company of New York, D.C. S.D.W.Va.1950, 92 F.Supp. 782, 784, "In determining questions of removability, only indispensable and necessary parties are considered.......
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